Brief for Appellant Page

Ricardo Javier Pena 1

NO. 01-14-00803-CR

NO. 01-14-00804-CR

 

IN THE COURT OF APPEALS

FOR THE STATE OF TEXAS

FOURTEENTH SUPREME JUDICIAL DISTRICT

___________________________________________________________

RICARDO JAVIER PENA

Defendant/ Appellant

V.

STATE OF TEXAS

Plaintiff/Appellee

___________________________________________________________

On Appeal in Cause Nos. 139,2873 and 139,2874 

From the 178th Judicial District Court 

of Harris County, Texas

Honorable David Mendoza, Presiding

___________________________________________________________

BRIEF FOR APPELLANT

__________________________________________________________

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

01-14-00804-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/16/2015 3:21:29 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/16/2015 3:21:29 PM CHRISTOPHER A. PRINE Clerk
Brief for Appellant Page

Ricardo Javier Pena 2

NAMES OF ALL PARTIES

1. Appellant: . . . . Ricardo Javier Pena

TDCJ # 01969337

A3-49

295 IH 45 North

Huntsville, Texas 77320

2. Attorney for the State: . . . Charles Brodsky

SBN 24057774

Asst. District Attorney

Harris Co. D.A.’s Office

1201 Franklin, Suite 600

Houston, Texas 77002

3. Defense Counsel at Trial: . . Michael E. Trent

SBN 00791814

11621 Spring Cypress Road

Suite C

Tomball, Texas 77377

4. Trial Judge: . . . . Hon. David L. Mendoza

Presiding Judge

178th District Court

Houston, Texas 77002

5. Counsel for Appellant: . . Mark A. Rubal

SBN 17360325

15150 Middlebrook Dr.

Houston, Texas 77058
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Ricardo Javier Pena 3

TABLE OF CONTENTS

NAMES OF ALL PARTIES................................................................ 2

TABLE OF CONTENTS..................................................................... 3

INDEX OF AUTHORITIES................................................................ 4

STATEMENT REGARDING ORAL ARGUMENT.......................... 5

PRELIMINARY STATEMENT.......................................................... 5

STATEMENT OF FACTS.................................................................. 7

POINT OF ERRORS........................................................................... 9

POINT OF ERROR ONE:

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE

OF COUNSEL IN THE ENTRY OF HIS PLEAS OF

GUILTY BECAUSE OF THE IMPROPER ASSURANCES

AND/OR MISREPRESENTATIONS OF HIS TRIAL

COUNSEL.............................................................................. 9

ARGUMENT AND AUTHORITIES................................................. 9

PRAYER FOR RELIEF....................................................................... 14

CERTIFICATE OF SERVICE............................................................. 16 
Brief for Appellant Page

Ricardo Javier Pena 4

INDEX OF AUTHORITIES

CASES

Cooper v. State, 769 S.W.2d 301 (Tex. App.-Houston 

[1 Dist.] 1989, pet. ref’d) ........................................................ 10 st

Fimberg v. State, 922 S.W.2d 205 (Tex.App.-Houston 

[1 Dist.] 1996, pet ref’d) ........................................................ 12 st

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.1986)............... 11

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998)................ 12

McGuire v. State, 617 S.W.2d 259 (Tex. Crim. App. 1981).............. 12

Mercado v. State, 615 S.W.2d 225 (Tex. Crim. App. 1981).............. 11,12

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

806 L. Ed. 674 (1984)............................................................... 10,11,

12

CONSTITUTIONS, STATUTES, AND OTHER AUTHORITIES

Tex. Const. Art. I, Sec. 10 ................................................................... 11

Tex. R. App. P. 39 ............................................................................... 5

U.S. Const. Amend. VI ........................................................................ 10,11
The Clerk’s record for cause number 139,2874 contains only the Motion for 1

Community Supervision and no copies of the plea papers. However, the Pre-Sentence

Report indicates Pena pled guilty to both cases (RR, Vol. 5, p. 4), each Clerk Record

contains a reset for a Pre-Sentence Investigation Hearing on both the cases (CR,

139,2873, Vol. 1; p. 25) and (CR, 139,2874, Vol. 1; p. 25), the Judge recites that

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Ricardo Javier Pena 5

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Tex.R. App.P. 39 Appellant waives oral argument unless the

Court believes the decisional process would be significantly aided by any

argument.

PRELIMINARY STATEMENT

On June 27, 2013, Appellant Ricardo Javier Pena (“Pena”) was charged

with two cases of Aggravated Sexual Assault of a Child, under cause numbers

139,2873 and 139,2874. (CR, 139,2873, Vol. 1; p. 6) and (CR, 139,2874, Vol.

1; p. 6). Pena was indicted for both cases on September 18, 2013, without any

enhancement paragraph(s). (CR, 139,2873, Vol. 1; p. 12) and (CR, 139,2874,

Vol. 1; p. 6).

On March 24, 2014, Pena pled guilty to the charges without an agreed

recommendation. (CR, 139,2873, Vol. 1; pp. 26-38) and (CR, 139,2874, Vol.

1; p. 27). The cases were reset for a pre-sentence investigation hearing on

1
Pena pled guilty on both cases at the Pre-Sentence Investigation Hearing (RR, Vol. 2;

pp. 5-7), and each Clerk record contains a Judgment and Sentence for both cases (CR,

139,2873, Vol. 1; pp. 45-46) and (CR, 139,2874, Vol. 1; pp. 34-35).

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Ricardo Javier Pena 6

August 8, 2014. (CR, 139,2873, Vol. 1; p. 25) and (CR, 139,2874, Vol. 1; p.

25). At the pre-sentence investigation hearing, the Court heard testimony and

after considering the evidence, the Judge found Pena guilty and reset the cases

for sentencing in thirty (30) days. (RR, Vol. 2; pp. 46-50).

On September 22, 2014, the Judge sentenced Pena to twenty (20) years

confinement in the institution division of the Texas Department of Criminal

Justice, to run concurrently. (RR, Vol. 3; pp. 4-5) and (CR, 139,2873, Vol. 1;

pp. 45-46) and (CR, 139,2874, Vol. 1; pp. 34-35). Pena filed his Notice of

Appeal on September 22, 2014, (CR, 139,2873, Vol. 1; pp. 49-50) and (CR,

139,2874, Vol. 1; pp. 38-39). The undersigned attorney was appointed and

assigned to represent Pena for his appeal on September 24, 2014. (CR,

139,2873, Vol. 1; p. 51) and (CR, 139,2874, Vol. 1; p. 40).

On October 21, 2014, Pena filed a Motion for New Trial alleging

ineffective assistance of counsel. (CR, 139,2873, Vol. 1; pp. 54-57) and (CR,

139,2874, Vol. 1; pp. 43-46). The Motion for New Trial was denied on

December 5, 2014, after a hearing and testimony from trial counsel for Pena

responding to the allegations of ineffective assistance raised by Pena in the
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Ricardo Javier Pena 7

Motion. (CR, 139,2873, Vol. 1; p. 58), (CR, 139,2874, Vol. 1; p. 47) and (RR,

Vol. 4; pp. 4-38).

The appellate record consists of one (1) volume of the Clerk’s Record

for each cause (CR, 139,2873, Vol. 1; p. ___), (CR, 139,2874, Vol. 1; p. ___)

and four (4) volumes of the Reporter’s Record (RR, Vol. ___; p.___).

STATEMENT OF FACTS

According to the record, Pena was accused of sexually assaulting two of

his granddaughters. One of the girls is named as the complainant in cause

number 139,2873 (identified as VC) and the other is named as the complainant

in cause number 139,2874 (identified as EM). The abuse purportedly occurred

over approximately a two year period (from the time the girls were in first

grade until they were in third grade). The girls reported that the abuse

happened on multiple occasions when they visited Pena and/or stayed over at

his house.

On June 18, 2013, the initial report of abuse was made to the Houston

Police Department after VC told her mom about the abuse. VC’s mother is

Pena’s step daughter-in-law. VC also told the police that EM was being

abused by Pena as well. The Juvenile Division Sexual Abuse Unit investigated
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Ricardo Javier Pena 8

the allegations.

Both complainants were subsequently interviewed at the Children’s

Assessment Center and both corroborated the allegations of abuse by Pena.

The mother of EM is Pena’s daughter. When she was interviewed,she related

an incident when EM was in first grade and got into trouble at school because

she was talking about sex with another child. When EM was confronted about

the subject, she said her grandfather (Pena) had told her about sex. Pena was

told about the statements made by EM and Pena said EM was lying. EM got

into trouble for lying and unbeknownst to anyone, at the time, Pena

purportedly continued to abuse EM.

When Pena was initially questioned about the allegations, he stated the

accusations were not true. Charges were filed against Pena on June 27, 2013.

(CR, 139,2873, Vol. 1; pp. 6-7) and (CR, 139,2874, Vol. 1; pp. 6-7).

After Pena was arrested, trial counsel was appointed to represent him on

July 1, 2013. (CR, 139,2873, Vol. 1; p. 9) and (CR, 139,2874, Vol. 1; p. 9).

Pena subsequently made bond and his case(s) were reset approximately seven

(7) times before he entered a plea of guilty to the charges on March 24, 2014.

Before entering his plea(s), Pena asked his trial attorney what he would

do if he were in his place. His trial attorney said he would plead guilty and
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Ricardo Javier Pena 9

throw himself on the mercy of the Court. Pena’s trial attorney also said he

thought Pena would get deferred probation because he [Pena] had never been

in trouble before, had been an asset to the community for thirty-three (33) years

as a pastor, and had done volunteer work. The attorney also told Pena that if

he did not get deferred probation then he [Pena] should get no more than five

(5) years in prison. As a result, Pena decided to enter a plea of guilty to both

the charges. See Affidavit of Ricardo Pena (CR, 139,2873, Vol. 1; pp. 56-57)

and (CR, 139,2874, Vol. 1; pp. 45-46).

As stated, Pena got sentenced to twenty (20) years in prison by the

Judge.

POINT(S) OF ERROR:

POINT OF ERROR ONE:

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL IN THE ENTRY OF HIS PLEAS OF GUILTY BECAUSE OF

THE IMPROPER ASSURANCES AND/OR MISREPRESENTATIONS OF

HIS TRIAL COUNSEL.

ARGUMENT AND AUTHORITIES

The test for determining whether a defendant was denied the effective

assistance of counsel was established by the Supreme Court of the United
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States in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 806 L. Ed.

674 (1984). The Court held that ineffective assistance of counsel is shown

only where the attorney’s errors are so serious that the attorney was not

functioning as counsel guaranteed by the Sixth Amendment and, in addition,

the defendant was deprived of a fair trial because of the error. U.S. Const.

Amend. VI.

For an error to reach that magnitude, there must be a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. The Court defined a reasonable

probability as a probability sufficient to undermine confidence in the outcome.

Strickland, supra; See also Cooper v. State, 769 S.W.2d 301, 304 (Tex. App.-

Houston [1 Dist.] 1989, pet. ref’d). However, the Supreme Court in

st

Strickland also held:

On the other hand, we believe that a defendant need not show that

counsel’s deficient conduct more likely than not altered the outcome of

the case . . . [t]he result of a proceeding can be rendered unreliable, and

hence, the proceeding itself unfair, even if the error of counsel cannot

be shown by a preponderance of the evidence to have undermined that

outcome. Strickland, 466 U.S. at 694; 104 S. CT. 2068.
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The Court emphasized that the test is not rigid in its application, but

requires flexibility:

A court should keep in mind that the principles we have stated do not

establish mechanical rules . . . [t]he ultimate inquiry should be on the

fundamental fairness of the proceeding . . . [i]n every case the Court

should be concerned whether . . . the result of the particular proceeding

is unreliable because of a breakdown in the adversarial process that our

system counts on to produce just results. Strickland, 466 U.S. at 696,

104 S. Ct. 2069.

The standard on the right to counsel is the same under the United States

and Texas Constitutions. U.S. Const. Amend VI; Tex. Const. Art. I, Sec. 10;

Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex. Crim. App. 1986). An

attorney’s performance must be gauged by the totality of the representation.

Strickland, supra; see also Mercado v. State, 615 S.W.2d 225, 227-228 (Tex.

Crim. App. 1981). However, a defendant is not entitled to errorless counsel.

Hernandez, supra. A fair assessment of counsel’s performance requires that

every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances, and to evaluate counsel’s conduct from his

perspective at the time. A defendant must overcome the presumption that the
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Ricardo Javier Pena 12

challenged action might be considered sound trial strategy. Strickland, 466

U.S. at 689, 104 S. Ct. at 2065.

Thus, Texas case law requires a two fold showing to establish ineffective

assistance:

(1) an act that constitutes ineffective assistance of counsel; and

(2) that the defendant suffered harm because of this ineffective

assistance.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Mercado, 615 S.W.2d at 228.

A plea of guilty based on erroneous information is involuntary.

McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981). However, a

defendant’s claim that he was misinformed by counsel, standing alone, is not

enough for a reviewing court to hold the plea was involuntary. Fimberg v.

State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1 Dist.] 1996, pet ref’d). The st

claim for ineffective assistance of counsel must be affirmatively supported by

the record. Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998).

Pena states in his affidavit that he would not have pled guilty to the

charges offenses, but for the assurances of his trial counsel that he [Pena]

would get either deferred probation or at worst five (5) years. See Affidavit of

Ricardo Pena (CR, 139,2873, Vol. 1; pp. 56-57) and (CR, 139,2874, Vol. 1;
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Ricardo Javier Pena 13

pp. 45-46).

His trial counsel testified at the motion for new trial. Trial counsel

stated that at first Pena said he was not guilty. However, after trial counsel had

the opportunity to review the forensic interviews of the complainants and fully

understand the evidence against Pena they began to have earnest discussions

about Pena pleading guilty. (RR, Vol. 4, pp. 8-9). During the discussions and

the course of representations, trial counsel said he told Pena he had extensive

experience in child abuse cases. He informed Pena that he had practiced

criminal law for almost 20 years (14 years as prosecutor and 6 years as a

defense attorney), he had extensive experience in child abuse cases and he had

co-authored a book by the Texas District & County Attorneys Association

(TDCAA) relating to the investigation and prosecution of child abuse cases.

(RR, Vol. 4; p. 10).

Trial counsel further said he told Pena that he thought he [Pena] had a

better than normal chance of getting deferred probation by pleading guilty to

the Judge based on his background, hisrecord of service to the community, his

work as a minister, and the good he had done in his life. (RR. Vol. 4; p. 12).

Trial counsel also testified that he told Pena that if he [Pena] did not get

deferred then he expected he would get not more than five (5) years in prison.
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Ricardo Javier Pena 14

(RR, Vol. 4; p13). Trial counsel agreed that Pena relied on his advice when he

[Pena] pled guilty to the charged offenses. (RR, Vol. 4; p. 15).

Based upon the record, it is reasonable to conclude that but for the

assurances of trial counsel Pena would not have pled guilty to the charged

offenses. Pena states that his pleas of guilty were in reliance on the

punishment advice of his trial counsel and his trial counsel affirms his reliance.

The punishment assurances made by trial counsel, boot strapped with the

qualifications and experience he communicated to Pena, manifests a

fundamental unfairness in the proceeding. The assurances and/or

representations were not guarantees, but it is clear that Pena trusted the advice

of his trial counsel when he decided to plead guilty to the charges. The record

shows that trial counsel knew Pena was relying on his advice and Pena clearly

suffered harm because the assurances and/or representations turned out to be

false. As a result, the pleas of guilty by Pena were involuntary and his

conviction(s) should be reversed.

PRAYER FOR RELIEF

WHEREFORE PREMISES CONSIDERED, Appellant respectfully

prays that this Court reverse his conviction and remand the case back to the
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Ricardo Javier Pena 15

trial court for a new trial and/or enter an order of acquittal, as appropriate and

for any and all such other relief for which he may be legally and justly entitled.

Respectfully Submitted,

 /s/ Mark A. Rubal 

By: Mark A. Rubal

SBN 17360325

15150 Middlebrook Dr.

Houston, Texas 77058

(281) 286-2222 Telephone

(281) 488-4597 Telefax

Attorney for Appellant
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Ricardo Javier Pena 16

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument

wasserved upon the District Attorney of Harris County, Texas, on this the 16th

day of April, 2015, by delivering a copy of the Brief to the Harris County

District Attorney’s Office, Appellate Division, 1201 Franklin Street, Suite 600,

Houston, Texas 77002 by CMRRR No. 7013 1710 0001 3124 4298.

I further certify that, on the same day, a true and correct copy of the brief

was mailed to Appellant, Ricardo Javier Pena, TDCJ # 01969337, A3-49, 295

IH 45 North, Huntsville, Texas 77320 by CMRRR No. 7013 1710 0001 3123

9577.

 /s/ Mark A. Rubal 

Mark A. Rubal